The American system of administrative judges

2018-11-09 来源: 51due教员组 类别: 更多范文

下面为大家整理一篇优秀的assignment代写范文- The
American system of administrative judges，供大家参考学习，这篇论文讨论了美国行政法官制度。在美国，负责行政裁决的行政官员被称为行政法官，包括行政法法官及非行政法法官。行政法官与司法法官不同，行使的是行政司法权。行政法官独立地进行行政裁决，并有相关制度保障其独立地位。行政法官制度伴随着美国的逐步兴盛而不断完善，充斥于美国社会的所有领域之中，并且使美国成为行政管理高效率的法治国家。

In
the United States, administrative officials responsible for administrative
adjudication are called administrative judges, including administrative law
judges and non-administrative law judges. Unlike judicial judges,
administrative judicial powers are exercised. Administrative judges make
administrative decisions independently and have relevant systems to guarantee
their independent status. The study of the American administrative judge system
is of great significance for improving the administrative hearing system and
administrative reconsideration system in China.

Under
the background of modern welfare state and regulated state, one of the
characteristics of the development of state power is the continuous expansion
of administrative power, and administrative power involves in all aspects of
citizens' life. An important manifestation of the expansion of administrative
power is the quasi-judicial power of administrative adjudication. In the United
States, the officials in the administrative system responsible for
administrative adjudication are administrative judges. The system of
administrative judge may not be concerned by the public in China, but it is
constantly improved with the gradual prosperity of the United States and
pervades all fields of American society, and makes the United States a legal
country with high efficiency of administrative management and a model for other
countries or regions to learn from. This paper intends to summarize and
introduce the American administrative judge system in order to improve the
understanding of this system among Chinese readers and explore the significance
of the American administrative judge system for the reform of China's
administrative system.

The
American administrative judge system plays an important role in promoting the
implementation of American administration according to law and has also
attracted the attention of domestic administrative law scholars. In the
discussion of domestic scholars, there exists a phenomenon that the three
confusing terms of administrative law judge, non-administrative law judge and
administrative judge are not strictly distinguished and the specific use
context is ignored, which is easy to cause confusion. To understand the
American system of administrative judges clearly, these concepts must be
clarified.

Administrative
law judges refer to federal administrative judges in the United States, whose
titles have undergone constant changes: when the act was enacted in 1946, it
was called the Examiner; In 1966, the code was revised to a Hearing test; In
1972, it was replaced by Administrative Law Judge. The power and independence of
administrative law judges are regulated and guaranteed by the federal
administrative procedure act. In addition to administrative law judges, there
are a large number of non-alj who are not protected by the federal
administrative procedure act and serve in various administrative organs.
Although they have different titles, they have similar duties and functions as
administrative law judges -- representing administrative organs, organizing and
presiding over hearings, and making administrative decisions, which are
actually administrative adjudicators. The biggest difference between
administrative law judges and non-administrative law judges is that the former
is protected by the federal administrative procedure act and appointed by
specialized agencies. The latter is only protected by ordinary civil servants,
appointed and selected by the executive.

Although
administrative officials who conduct administrative hearings and identify facts
have different titles, the author believes that all administrative officials
with judicial characteristics, whether selected by federal unified assessment
or employed by administrative agencies, should be called administrative judges.
Therefore, this paper defines the scope of administrative judges, including the
special group of administrative judges and all other non-administrative judges
employed by various administrative organs.

There
are currently two types of judges in the United States. The first category is
the well-known judicial judges who, according to article 3 of the federal
constitution, not only have jurisdiction over civil, commercial and criminal
cases, but also have jurisdiction over administrative disputes. The other is an
administrative judge in the executive system, nicknamed "Hidden
Judiciary" for his lack of knowledge. Although both are persons who
identify facts, apply the law and settle disputes, administrative judges do not
have the judicial power independent of the executive power, while judicial
judges have the power to veto the actions of the legislative or administrative
organs. In addition, the two are different in the following aspects:

The
most striking difference between an administrative judge and a federal court
judge is that the former tends to be more specialized, with more specialized
expertise in identifying facts. They need expertise and practical experience in
their field of expertise before they can be appointed administrative judges.
Once they become administrative judges, their experience in the technical field
of limited jurisdiction will be increasingly strengthened, as the disputes they
decide involve only the administrative organs to which they belong and are
repeatedly adjudicated on the same types of cases. However, due to the
interwoven demands at present, the cases under the jurisdiction of judges in
federal courts involve different kinds of laws and are complicated and
complicated. To determine the nature of such legal relations, it is necessary
for a judge to have a systematic legal knowledge system in order to handle
various types of cases.

Under
the federal constitution, federal court judges are nominated by the President
but can only be appointed with the consent of the senate. According to the
principle of separation of powers, the judicial system should be impartial,
neutral and beyond political color, but in fact, the appointment and removal of
judicial judges has never completely got rid of political factors. Usually, the
President prefers to nominate members of his own party.

Unlike
the creation of federal court judges, administrative judges are selected
through a special and systematic selection mechanism, without any political
color. Usually has the following two ways: one is by the administration of
personnel to meet the requirements of the basic office the examination system
in the administrative organ employing administrative law judge, by the
personnel administration according to the inspection qualified applicants final
score ranking and administrative organs open position, will be ranked in the
top three list of applicants for administrative organs to choose, the so-called
rule of three; Another way is to select and transfer existing administrative
law judges from another agency. Both of these methods are based on merit
system, and the ability to choose the object and the professional knowledge in
the corresponding field are decisive factors. It is an objective choice to
separate the political factors from the appointment process and prevent the
administrative organs from abusing their power.

Reviewing
the history of the expansion of executive power and the gradual growth of
administrative organs, administrative adjudication has become the most
important ruling system in the United States today. The federal administrative
procedure act stipulates that administrative adjudication refers to the process
of administrative agency forming an order. Administrative adjudication by
administrative judges is in line with people's cognition, that is,
administrative affairs have the characteristics of complexity and
professionalism, so it is necessary for the adjudicator to have the expert
knowledge and experience in this field, while administrative judges just meet
the requirements. Administrative adjudication is a kind of function of
administrative judge, but not equal to judicial power, but quasi-judicial
power. Administrative adjudication in the United States is divided into two
types, namely formal adjudication and informal adjudication, based on the
federal administrative procedure act. Under the act, formal decisions apply to
cases where the law requires a decision to be made on record in administrative
hearings. Upon receiving a request for a formal award, the administrative organ
shall have the power to decide whether to organize a hearing. The hearing of
the formal ruling shall be presided over by the administrative law judge and
the process of the hearing shall be recorded. The hearing procedure in the
formal decision is just like the court's procedure, the litigant has the right
to be informed, to give evidence, to hire a lawyer, to argue and so on. In
addition, there are other forms of adjudication in the United States that do
not belong to formal adjudication, often referred to as informal adjudication,
and do not have to comply with the requirements for formal adjudication under
the federal administrative procedure act. The federal administrative procedure
act does not provide any mandatory provisions for informal adjudication, but it
hopes that the executive authorities can adopt flexible solutions according to
the specific situation of administrative affairs and the development and
changes. Informal rulings do not require trial hearings, but instead use
investigations, inspections and communications.

The
scope of cases under the jurisdiction of U.S. administrative judges is first
regulated by the federal administrative procedure act. Although the scope of
jurisdiction provided for by the act is limited and many disputes are not
covered by the act, it is in fact the jurisdiction of the administrative judge
as long as it is governed by the statute law. The statutes that govern the
jurisdiction of administrative judges may be federal, state, or departmental
rules and bylaws. The classification of cases in which administrative judges
make administrative decisions may involve the following types: implementation
of civil rights, health and safety, environment, securities and commodities,
labor relations, etc. Therefore, administrative judges actually have a wide and
complicated jurisdiction.

Although
administrative judges have the adjudicative powers of the administrative
judicial nature, this does not mean that administrative judges enjoy the same
status as court judges. The administrative judge does not have the judicial
power independent of the executive power, and faces the dilemma of maintaining
loyalty to the subordinate administrative organs and making decisions
independently on disputes involving the administrative organs. In order to
balance the conflict and ensure that administrative judges are not directly or
indirectly bound by the executive, the federal legislation guarantees the
independence of administrative judges.

The
United States, like other European countries, has a series of laws that impose
strict limits on the salaries of government employees. The federal employees
comparable pay act of November 1990 is the main legal basis for the current pay
system for government employees. The act establishes a basic principle that
executive judges are paid according to their years of service, and that the
office of personnel management decides the remuneration of administrative
judges. Although the office of personnel management is not an administrative
body employing administrative judges, it has the power to decide the proportion
of the salaries of administrative judges, and it is isolated from the
administrative body to avoid being affected by it and is not subject to the
opinions of the administrative body, thus making the salary treatment of
administrative judges completely free from the power control of the
administrative body.

Moreover,
a large proportion of administrative judges are paid in higher civil service
pay grades, so they do not have to be controlled by the executive for higher
pay. This practice helps to free the administrative judges from their control,
ensures that they do not threaten them by, for example, wage cuts, and ensures
that they make objective decisions independently.

The
dismissal of administrative judges shall be subject to certain restrictions and
shall be removed by the merit system protection committee on the basis of a
hearing held by the merit system protection committee on the premise that there
are sufficient reasons. So the term of office of administrative judges is
substantially protected, and while their position is not for life, the term of
office of administrative judges is almost permanent without the conditions
specified in the federal procedural law. Some scholars believe that the
position of administrative judge is not permanent, which is intentionally
designed by the law, because it makes the system more flexible to adapt to the
rapidly changing administrative needs and political considerations.

It
can be seen that the legislation almost excludes the power of administrative
organs to decide the salary and treatment of administrative judges and to
dismiss them, so that they can remain independent. The federal administrative
procedure act provides that officials who preside over hearings and participate
in adjudications must act in an impartial manner. Administrative judges belong
to the executive branch, so even if they do not have the transcendent position
in the sense of judicial structure, they should guarantee their independence
and achieve the goal of impartiality.